Delhi District Court
Addl. Sessions Judge/Special ... vs Unknown on 26 March, 2011
1
IN THE COURT OF MS. RAVINDER KAUR
ADDL. SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No. 01/3/08
Sh Ganpat Singh
Air Customs Officer,
IGI Airport, New Delhi .... Complainant
Versus
Mr Mohammad Bagour
S/o Mr Awaz,
R/o Village Kashmeran,
P S Ghorian, Herat, Afghanistan .... Accused
Date of Institution : 25.03.2008
Date of Decision : 26.03.2011
JUDGMENT
1 The accused Mohd Bagour has faced trial U/s. 21, 23 r/w Sec. 28 of the NDPS Act, 1985. 2 The prosecution case is that on 8.10.2007 SC No 01/3/08 Page No. 1 2 the accused arrived at IGI Airport by KAM Air flight No. RQ0013 holding passport No. 0R686259 dated: 13.5.06. He was only carrying a hand bag and was not having any checked in baggage. Surveillance was kept on him in the arrival hall IGI Airport on the suspicion that he may be carrying some contraband substance. He was stopped near exit gate of the arrival hall after crossing the green channel and was asked by the customs officer as to whether he was carrying any good to be declared to the custom but he replied that he was carrying only personal effects. He was specifically asked whether he was carrying any contraband goods but he denied. The complainant Sh Ganpat Singh ACO was not satisfied with his reply and he joined two independent witnesses and in their presence, the accused was again asked whether he was carrying any goods or contraband good to be declared to customs but he claimed to be carrying only personal effects. Thereafter notice U/s 50 NDPS Act as well as U/s 102 Customs Act was served upon the accused that he had an option to get the examination of his baggage and personal searched conducted before a Gazetted Officer of customs or a Magistrate. Since the SC No 01/3/08 Page No. 2 3 accused did not know either Hindi or English language, as such Sh Burham Ahmedi an official from KAM Air who knew the language of the accused was asked to make him understand the contents of the notice. The contents of both the notices, referred above, were exppained to him by Sh Burham Ahmedi but he expressed that he had no objection if any custom officer had searched him or his baggage. The accused produced his travel documents i e the boarding card and Afghan passport. He was taken to customs preventive room in the arrival hall for further examination. The hand bag carried by the accused was checked in the presence of the panch witnesses which was found containing clothes and personal effects. The bag was emptied of its content and the bottom portion of the bag was then cut opened and a white colour stitched cotton cloth belt with velcro having four partitions was detected, which was pricked with the help of a needle and white powder oozed out of the same suspected to be some Narcotic Substance. Accused was asked about the substance and he affirmed that it was Narcotic Substance. After removing the stitches of the cotton belt , four packets ( three big and one small) wrapped with yellow SC No 01/3/08 Page No. 3 4 adhesive tape were recovered which were given Mark E, F, G and H respectively and were found containing off white powder which was tested with the field test kit and found positive for Heroin. The contents of each packet were weighed and were found to be 600 grams,1263grams, 1279grams, 1159 grams respectively, the total weight being 4301grams . The said substance was seized under NDPS Act. Three representative samples of 5 grams each were drawn from the contents of each of the packet and were given Mark E1, E2, E3, F1 F2 F3, G1 G2 G3 and H1 H2 H3 and were kept in 12 poly packs and then further placed in 12 brown colour envelopes sealed with custom seal No 6 over label bearing the details of the contents, the signatures of the panch witnesses, accused and the complainant. 3 The remaining substance was kept in four separate plastic bags of Flamingo duty free and then kept in plastic containers which were wrapped with off white cloth separately and were given Mark E, F G and H and were sealed with custom seal No 6 over label bearing the details of the contents, the signatures of the panch witnesses, accused and the complainant.
SC No 01/3/08 Page No. 4 5 4 The concealing material, the personal effects of the accused and the travel documents of the accused were also seized. Panchnama was prepared. The statement of the accused was recorded U/s 67 NDPS Act on 9.10.2007, wherein he admitted the recovery of contraband from his possession. The accused was arrested under the provisions of NDPS Act. Report U/s 57 NDPS Act was sent by the complainant to Sh Sanjay Jain ACS on 9.10.2007. 5 The case property, jamatalashi, personal effects, representative samples, remnant samples were deposited in warehouse vide detention receipts enclosed alongwith the complaint.
6 Information was sent to the various authorities by the Asstt. Commissioner Preventive ACP on 9.10.2007 regarding the seizure of Heroin and the arrest of the accused.
7 On 10.10.2007 the representative samples Mark E1, F1 , G 1 and H 1 alongwith Test Memo in triplicate were deposited in the CRCL by the complainant alongwith the forwarding letter duly signed by the ACS. That vide test report F No.1/ ND/R/ 2007/ CLD493 to 496(N) SC No 01/3/08 Page No. 5 6 dated 21.11.2007 of the CRCL, it was opined that on analysis the samples Mark E1 F 1 G 1 and H l answered positive for diacetylmorphine, The remnant samples were received from the CRCL and were deposited with SDO(A) on 15.12.2007 vide DR No. 29182. The remnant samples were again sent to the CRCL on 15.2.2008 through Sh Ashok Kumar ACO for determining the purity percentage. Fresh report dated: 5.3.2008 was received in this regard from the CRCL and as per the same the purity percentage in remnant samples Mark E1, F1, G1, and H1 was found to be as follows:
Mark Percentage DAM (Heroin)
E1 37.6
F1 40.7
G1 39.7
H1 39.2
9 After completion of the investigation the
complaint was filed in the court by Sh.. Ganpat Singh ACO against the accused U/s. 21,23,28 NDPS Act. 10 On the basis of material available on record, charge U/s21, 23 r/w Sec. 28 of the NDPS Act was framed SC No 01/3/08 Page No. 6 7 against the accused to which he pleaded not guilty and claimed trial.
11 The prosecution in support of its case has examined seven witnesses.
12 PW1 Sh Sanjay Jain, was posted as Supdt., Customs at IGI Airport on 8.2.07 and he is a formal witness who had issued a request letter for supply of immigration form to FRRO, had signed the D.Rs Ex. PW 1/B to Ex. PW1/H at point A, had received report U/s 57 NDPS Act Ex. PW 1/J and issued letter Ex. PW 1/K to the CRCL for analysis of the representative samples, whereby he also attested the signatures of ACO at point B and C. 13 PW 2 Sh Ram Chander ACO was SDO(A) on 15.12.07 and Sh Ganpat Singh IO of the case had deposited in his custody one sealed packet bearing remnant sample sealed with custom seal No. 6, regarding which entry was made in SDO(A) register at serial No. 4422 Ex.PW 2/A. He further proved the relevant entry No. 4423 dated 15.12.07 as Ex. PW2/B dealing with custom seal No. 6, entry No 4424 Ex. PW2/C, whereby the remnant sample was received by him from the CRCL and entry No. 4425 SC No 01/3/08 Page No. 7 8 dated 15.12.07 Ex. PW 2/D dealing with sealed packet and letters.
14 PW 3 Inpst. Bijender was SDO(A) IGI Airport, ShiftB from 9am to 9pm on 11.3.08. As per his testimony, he had received one sealed packet sealed with the seal of CRCL vide DR No. 29047 bearing his signature at point A, of Sh Ganpat Singh ACO at point B and of the Supdt., at point C. The DR is proved as Ex. PW 3/A. He testified that relevant entry was made in the SDO(A) register vide entry No. 5285.
15 PW 4 Kishan Chand Supdt was present as SDO(A) from 9pm on 8.10.07 to 9am on 9.10.07. As per his testimony, at 8am on 9.10.07 ACO Ganpat Singh had handed over to him 18 packets vide SDO(A) register entry No. 4067 vide D.Rs No. 3927 to 3931, all dated: 9.10.07 bearing the custom seal No. 6, the details of packets were mentioned in the respective D. Rs which were signed by him at point A and the same are Ex. PW1/C to Ex. PW1/F. That these packets were handed over to the next SDO(A) vide entry No. 4069 dated 9.10.07, photocopy of which is Ex. PW 4/A. He further testified that he had also issued SC No 01/3/08 Page No. 8 9 custom seal No. 6 to ACO Ganpat Singh, though no entry was made in the register. He stated that the seal was issued to the concerned ACO on the basis of requisition letter Ex. PW 4/B bearing his signature at point A and of ACO Ganpat Singh at point B. That seal after use was returned by ACO Ganpat Singh to him on 9.10.07 itself and regarding this he made an entry Ex. PW 4/B at point C. 16 PW 5 Ganpat Singh ACO is the seizing/ arresting officer who deposed on the lines of the complaint. He proved notice U/s 102 Customs Act as Ex. PW 5/A and notice U/ 50 NDPS Act as Ex. PW 5/B served upon the accused through Borhan Ahmadi who was called from KAM Airlines to translate the proceedings to the accused in his language since Borhan Ahmadi was acquainted with Dari and Farsi languages and the accused only knew these languages. He testified about recovery of contraband of 4.301 kgs from the bottom portion of the handbag Ex. P24 belonging to the accused. He further deposed about the withdrawal of the sample Mark E1 to E3, F1 to F3, G l to G3 and H 1 to H3 from the recovered substance, about obtaining custom seal No. 6 from the SDO(A) vide letter SC No 01/3/08 Page No. 9 10 Ex. PW 4/B, about the sealing of the remaining recovered substance in four separate flamingo bags bearing marking E, F, G and H. He further deposed about the seizure of the personal effects and travel documents of the accused. That panchnama Ex. PW 5/C was drawn at the spot which was signed by the witnesses at point A, accused and panch witnesses and Borhan Ahmadi at point B to E respectively and accused had put his thumb impression on the last page at point F and G. He testified that panchnama was read over to the accused in his own language by Borhan Ahmadi and that both the panch witnesses and Borhan Ahmadi remained present during the entire remaining panchnama proceedings which took place from 7:30pm to 3:30am. He also proved the statement of the accused Ex. PW 5/E recorded U/s 67 NDPS Act which is in the handwriting of Borhan Ahmadi in English language. As per the testimony of PW 5 the said statement was recorded by Borhan Ahmadi after conversing with the accused and he made a statement to this effect from point X to X on the statement itself. He further stated that certain questions were given to Borhan Ahmadi which were put by him to the accused and his SC No 01/3/08 Page No. 10 11 reply was reduced into writing. He further deposed about the contents of the statement of the accused and that the same was read over to the accused in his own language and thereafter he had put his thumb impression thereon. 17 PW 5 further testified about deposit of case property, packing material, personal effects, representative samples and jamatalashi articles in the custody of SDO(A) vide DR No. 3927 to 3931, 3937 Ex. PW1/C to Ex. PW 1/F, Ex. PW 1/D1 and Ex. PW1/H bearing his signature at point B and of the ACS Sh Sanjay Jain at point A. He further proved the arrest memo of the accused as Ex. PW 5/F and thumb impressions of both the hands of the accused as Ex. PW 5/H. He further proved the seizure and arrest report U/s. 57 NDPS Act Ex. PW 1/J submitted to Sh Sanjay Jain Supdt., Customs. He also deposed that vide letters Ex. PW 1/J1 to Ex. PW 1/J3 intimation regarding the seizure and arrest of the accused was sent to various authorities by Sh V B Prabhakar. He further deposed that accused was got medically examined at RML hospital vide MLC No.101357 Ex. PW5/K. That on 10.10.07 he had obtained four representative samples from SDO(A) and SC No 01/3/08 Page No. 11 12 deposited with the CRCL alongwith the authority letter and the Test Memo. That Test Memo was prepared in triplicate at the time of drawal of the sample and office copy of the same is Ex. PW 5/L. That the samples were deposited in the CRCL vide receipt Ex. PW 5/M. He further testified that on 15.12.07 the remnant samples were received from the CRCL which were handed over to him by Assistant Commissioner. He deposited the same with SDO(A) vide D.R Ex. PW 1/B. He proved the test report received by him alongwith the remnant samples as Ex.PX. He further deposed that the remnant samples were again sent to CRCL for obtaining the percentage of the diacetylmorphine in terms of letter Ex. PW 5/N vide authority letter Ex. PW 5/O and the same were deposited in the CRCL vide receipt Ex. PW 6/A and the remnant samples received thereafter were deposited in the custody o SDO(A) vide DR Ex. PW 3/A. He further stated that the statement of the panch witnesses Bhupender Singh Ex. PW 5/P U/s 67 NDPS Act was recorded on 31.1.08 and the statement of Borhan Ahmadi Ex PW 5/Q was recorded on 21.3.08.
18 PW 5 also proved the travel documents of SC No 01/3/08 Page No. 12 13 the accused ie the air ticket Ex. PW 5/R, boarding pass Ex. PW 5/R1 and resident permit Ex. PW 5/R2.
19 During the course of his further testimony he correctly identified the remaining case property as contained in pulanda Mark E as Ex. P5, in pulanda Mark F as Ex. P11, in pulanda Mark G as Ex. P15, in pulanda Mark H as Ex. P20. Besides, he also identified the paper slips affixed on each above referred pulandas, the off white cloth in which the contents were sealed, jute string and plastic containers. He further identified the contents of eight representative samples E2 E3, F2 F3, G2 G3 and H2 H3 alongwith the small zipper pouches in which the substance was contained as Ex. P37 to Ex. P44 and the paper envelopes in which the samples were sealed as Ex. P29 to Ex. P36. He further identified the remnant samples as contained in brown colour envelopes as Ex. P45 to Ex. P48 and the zipper pouches alongwith the contents as Ex. P49 to Ex. P52.
20 PW 6 Sh Sukhdev Singh Lab Asstt., deposed about receiving of four remnant samples Mark E1 to H1 in sealed condition alongwith Test Memo in SC No 01/3/08 Page No. 13 14 duplicate and authority letter from Sh Ganpat Singh ACO against receipt Ex. PW 6/A. 21 PW 7 SC Mathur is the Chemical Examiner under whose supervision the representative samples E1 to H1 were examined and proved the test reports as Ex. PX and Ex, PX1.
22 After conclusion of the prosecution evidence, the statement U/s 313 Cr PC of the accused was recorded after Sh. Shamsher Wani, the interpretor had read over the questions to the accused in his language and obtained the reply and then translated the same to the court in the language of the court. The accused admitted, he arrived at IGI Airport from Afghanistan on 8.10.2007 by flight No. KAM RQ0013. However, he denied that he was carrying any hand bag or that any contraband was recovered from his handbag. He denied that notice U/s 50 NDPS Act and 102 Customs Act were served upon him through Borhan Ahmadi . He also denied that any question was put to him in his own language and that endorsement to this effect was made at point A to A on both the notices referred above. He claimed that his thumb impressions on both the notices SC No 01/3/08 Page No. 14 15 were obtained forcibly. That his travel documents were taken forcibly by the custom officer without disclosing any reason. He denied the recovery of four transparent polythene packets containing off white powdery substance in the cotton belt recovered from the bottom portion of his hand bag . He also stated that his thumb impression and signatures were forcibly obtained on various blank papers, blank small chits, semi written papers and written papers at one point of time without explaining the contents in the language known to him. He denied that he had made any statement voluntarily. He stated that he has been falsely implicated in the present case. That no contraband was recovered from his possession and from his baggage. That on his arrival he was illegally kept and detained by custom officials without disclosing any reason. That his family history was obtained during the said period and thereafter his signatures and thumb impression were obtained forcibly on various blank papers, blank small chits, semi written papers, written papers at one point of time without explaining the contents in the language known to him. That he was beaten in a room where one more Afghani national was present and he was SC No 01/3/08 Page No. 15 16 suspected carrying some material but he was allowed to go on the next day. He further stated that he retracted his statement in his own handwriting in Dari language which is on the judicial record.
23 I have heard arguments addressed by Ld. SPP for customs and Sh Yogesh Saxena, amicus curiae for the accused.
24 Ld SPP has submitted that the prosecution has proved its case beyond reasonable doubt vide the testimony of PW 5 Sh. Ganpat Singh ACO that 4.301kgs of Heroin was recovered from the possession of the accused which he had brought alongwith him from Afghanistan and was recovered from his hand bag after the notices U/s. 50 NDPS Act and U/s 102 Custom Act were served upon the accused through Sh Borhan Ahmadi who knew Dari and Farsi language which were the only languages in which the accused could converse.
25 It is submitted that the prosecution has further proved that the samples Mark E 1 to E3, F 1 to F3, G1 to G3 and H1 to H3 were drawn at the spot and the samples Mark E1 to H 1 were sent to the CRCL where SC No 01/3/08 Page No. 16 17 they were examined qualitatively and quantitatively and were found to contain diacetylmorphine. Further the case property and the samples drawn therefrom were deposited in the custody of the SDO(A) at the earliest on 9.10.2007. That report U/s. 57 NDPS Act was sent to the superior officer within time prescribed by the Act, that the accused had also made voluntary statement U/s 67 NDPS Act through Sh Borhan Ahmadi a panch witness who was acquainted with the language of the accused and after conversing with the accused had recorded his statement in his own handwriting. It is submitted that all the mandatory safeguards provided by the Act for the protection of the accused against false implication were complied with. It is submitted that in these circumstances the prosecution has proved beyond reasonable doubt that accused had brought to India 4.301kgs of Heroin without any legal permission and was found in conscious possession of the same, thus he is liable to be convicted for the offences he is charged with. 26 On the other hand, the counsel for the accused has submitted that PW Borhan Ahmadi who is an important witness of the prosecution, has not been SC No 01/3/08 Page No. 17 18 examined for the reasons best known to the prosecution. It is submitted that he is the witness through whom the prosecution claims to have explained to the accused the proceedings of this case in the language of the accused since accused was admittedly not acquainted either Hindi or English language but only knew Dari and Farsi language. That the prosecution has claimed to have served notice U/s 50 NDPS Act and U/s 102 Customs Act upon the accused through Borhan Ahmadi who made an endorsement on the notice U/s. 50 NDPS Act Ex. PW 5/C to the following effect:
" Read over and explained in vernacular to Mr Mohammad Bagour who consented for search by customs officer and signed in token of acceptance."
The said endorsement was made by Borhan Ahmadi from point A to A has not been proved on record as it is only Borhan Ahmadi who could have deposed and explained to the court the manner in which the notices were served upon the accused. It is submitted that there is no compliance of the provisions of Section 50 NDPS Act since there is no SC No 01/3/08 Page No. 18 19 evidence on record that the accused was informed about his legal rights to get his person and baggage searched in the presence of a Gazetted Officer or a Magistrate. It is submitted that before the search of the baggage of the accused and his person was conducted, the custom officer was not aware of the fact that the recovery of contraband or any incriminating article/ substance would be from his person or his baggage, as such it was mandatory on the part of prosecution to have complied with the provisions of Sec. 50 NDPS Act.
27 That Test Memos in the present case were not prepared at the spot at the time of drawl of the samples and there is no evidence on record that seal was withdrawn from the custody of SDO(A) on 10.10.07 for preparing the Test Memos. That as per the testimony of PW 5 the Test Memo was prepared in triplicate at the time of withdrawal of the sample but there is no mention of the same in the panchnama and the Test Memo Ex. PW 5/L is dated 10.10.07 which makes the testimony of PW 5 not worth reliance. No reason has been assigned as to why the Test Memos were not prepared on the same date and time when SC No 01/3/08 Page No. 19 20 the samples were drawn. It is submitted that though PW 4 in his chief examination has deposed about making entries in the SDO(A) register regarding deposit of 18 packets vide different D.Rs, however he has not given any reason as to why no entry was made in the SDO(A) register with regard to handing over or return of the custom seal No.
6. It is further submitted that in the present case the colour of the remaining substance and the samples was found to be different when they were produced in the court. That in view of the fact that there is no evidence of handing over and taking over of the seal on 10.10.07, the possibility of tampering of the case property cannot be ruled out. Further that PW 4 has nowhere testified that the seal was handed over to ACO Ganpat Singh on 10.10.07. To the contrary, PW 4 deposed in his cross examination that seal was handed over to ACO Ganpat Singh at 00hours on 8/9102007. He stated in his chief examination that ACO Ganpat Singh returned the same to him on 9.10.07 regarding which he made entry at point C on Ex. PW 4/B. It is submitted that PW 4 Kishan Chand Supdt., nowhere stated that seal was again handed over to PW 5 Ganpat SC No 01/3/08 Page No. 20 21 Singh ACO on 10.10.07 nor any other witness has been examined to this effect, which leads to the inference that seal was easily accessible to PW 5, as such again the possibility of tampering of the case property cannot be ruled out.
28 The defence counsel has further argued that PW 5 in his statement dated 27.1.2010 during his chief examination testified that he had separated four samples bearing Mark El, F1, G1 and H1 for CRCL. That though he nowhere testified that he had deposited these samples in the custody of SDO(A) but in his further chief examination recorded on 14.1.2011 he stated that he had obtained the four representative samples from the SDO(A) and deposited the same in the CRCL. It is submitted that no relevant entry regarding withdrawal of samples Mark E l to H1 in the custody of SDO(A) is proved on record by the prosecution. There is also no evidence on record as to who was the SDO(A) on 10.10.07 to whom the charge was handed over by PW 4 vide entry No. 4067/4069 Ex. PW 4/A. It is submitted that no SDO(A) except PW 4 in whose custody the case property and the samples were deposited SC No 01/3/08 Page No. 21 22 for the first time vide entry No. 4067, has been examined. Valuable godown incharge has also neither been cited nor examined, thus the link evidence is missing in the present case to the effect that the case property and the samples remained in safe custody after PW 4 left his duty. It is submitted that if the Test Memos were prepared on 10.10.07 and PW 5 had the custody of custom seal No. 6, he had ample opportunity to tamper the case property, particularly, when there is no evidence on record that samples were lying deposited in the custody of PW4 or any other SDO(A) when the Test Memos were prepared. 29 The defence counsel has further argued that there is no evidence on record that the Test Memos sent alongwith the representative samples to the CRCL were bearing the impression of custom seal No. 6 with which the samples were allegedly sealed, as there is no facsimile impression of the seal on the Test Memo received in the CRCL but the same is bearing broken lac seal under white transparent tape and that this fact also does not find mention in the report of the CRCL that the seal impression was not there on the Test Memo and it was bearing a lac SC No 01/3/08 Page No. 22 23 seal. That the lac seal on the Test Memo on the reverse of which the report of CRCL is there, is not legible and as such it appears that the same was not even compared in the CRCL and in routine it was mentioned in the report that the seals on the sample envelopes were tallied with the facsimile seal on the Test Memo. It is submitted that in these circumstances the prosecution has failed to prove the link evidence and that the samples received in the CRCL were true representatives of the recovered substance. Further that the statement of the accused U/s 67 NDPS Act has not been proved on record properly, as it is recorded in the handwriting of Borhan Ahmadi and as per the prosecution he spoke to the accused in his own language and then recorded the same in English language. However, the said statement could not have been proved by the complainant merely for the reason that it was written by Borhan Ahmadi in his presence, as complainant does not know what was spoken by Borhan Ahmadi to the accused in Dari and Farsi language and what reply was given by the accused to say that the statement was correctly recorded by Borhan Ahmadi. It is only Borhan Ahmadi who could have SC No 01/3/08 Page No. 23 24 proved the said statement. It is submitted that the mandatory safeguards provided to the accused under NDPS Act have not been observed during investigation, and thus the accused is entitled to benefit of doubt. 30 After hearing the submissions of both the parties, I have gone through the material on record carefully.
31 It is admitted case of the prosecution that the accused was intercepted at IGI Airport on his arrival from Afghanistan. However, it is denied by him that any incriminating substance was recovered from his possession. The prosecution to prove the recovery of the contraband from the possession of the accused has examined only PW 5 who is the complainant/ seizing / arresting officer in the present case. In his testimony he deposed about interception of accused at IGI Airport which is admitted by the accused. PW 5 testified about service of notice U/s 50 NDPS Act upon the accused. He testified that thereafter the hand bag of the accused was checked and was found containing at its bottom portion, white colour cotton cloth stitched velcro belt which was found containing one small SC No 01/3/08 Page No. 24 25 and three big packets containing substance suspected to be Heroin, However, his aforesaid testimony is not corroborated by any independent evidence as both the panch witnesses and even Bohan Ahmadi who could have supported his testimony in this regard being the interpretor in whose presence all the proceedings were conducted, have not been examined by the prosecution and these witnesses were dropped on the request of Ld. SPP for Customs. Though non examination of independent witnesses by itself does not become fatal to the prosecution. However, it has to be appreciated differently in the facts and circumstances of each case. So far the present case is concerned, the prosecution itself has claimed that the accused was not aware of Hindi or English language and as such Borhan Ahmadi who was acquainted with Afghani language ie Dari and Farsi were joined in the proceedings to explain notice U/s 50 NDPS Act and notice U/s 102 Customs Act upon the accused, to explain panchnama proceedings to the accused and to record his statement U/s 67 NDPS Act. Hence, the non examination of Borhan Ahmadi effects the prosecution case adversely as it is only this witness who SC No 01/3/08 Page No. 25 26 could have explained to the court the manner in which both the notices U/s 50 NDPS Act and U/s 102 Customs Act were served upon the accused.
32 Admittedly, an offence committed under NDPS Act is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/ suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 is intended to protect a person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding and it would also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/ suspect of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. The prosecution must at SC No 01/3/08 Page No. 26 27 the trial establish that the empowered officer had conveyed the information to the concerned person of his/ her right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. It is held by the Hon'ble Apex Court in the case of State of Punjab Vs Baldev Singh reported in JT 1999(4) SC 595 that courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50 NDPS Act, that no presumption U/s 54 NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 to ensure that persons are only searched with a view to maintain veracity of evidence derived from such search. That severe punishments have been provided under the Act for mere possession of illicit drugs and narcotics substances. Personal search, more particularly for offences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the SC No 01/3/08 Page No. 27 28 safeguards provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of sub section (1) of Section 50 make it imperative for the empowered officer to "inform the person concerned ( suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted officer or a Magistrate and failure to "inform"the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a Gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been record only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted officer or a Magistrate, if so required by him.
SC No 01/3/08 Page No. 28 29 33 It is held by the Hon'ble Apex Court in the judgment of "Vijaysinh Chandubha Jadeja Vs State of Gujarat reported in 2010(4) LRC 225 (SC) as follows:
"We are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the SC No 01/3/08 Page No. 29 30 same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.'' It is further held that :
" Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person ( suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to SC No 01/3/08 Page No. 30 31 the search proceedings, it may verify strengthen the prosecution as well. ''
34 So far the present case is concerned, as per the prosecution notice U/s 50 NDPS Act was served upon the accused with the help of interpretor Borhan Ahmadi as the accused had language problem and was unable to understand the Hindi and English language. PW 5 testified in his chief examination that in the presence of panch witnesses he had disclosed to the accused that he had the option that the search of his baggage and himself could be conducted before a Magistrate or a Gazetted officer or a Custom officer to which he told that he does not know Hindi and English language. However, he understood the Farsi and Dari languages. He stated that by the expression of accused he came to know that he did not know Hindi or English language and knew only Dari and Farsi languages and one person namely Borhan Ahmadi was called from KAM Airline who was acquainted with Dari and Farsi languages, to translate the proceedings to the accused in his own language. Further that on his request Borhan Ahmadi explained the contents of both the notices to the SC No 01/3/08 Page No. 31 32 accused and informed him that he had option to get search of his baggage or his person in the presence of a Magistrate or a Gazetted Officer of customs and accused told Borhan Ahmadi that he had no objection if any custom officer took the search of his person or his baggage. That thereafter the signatures of both the panch witnesses, accused and Borhan Ahmadi were taken on both the notices Ex. PW 5/A and Ex. PW 5/B respectively. That accused had also put his thumb impression on the notices at point F and G. That Borhan Ahmadi had made an endorsement at point X to X on both the notices to the effect, " Read over and explained in vernaculars to Mr Mohd. Bagour who consented for search by any custom officer and signed in token of acceptance."
35 So far Borhan Ahmadi is concerned as observed above, he has not been examined in the present case on the ground that he is not residing at the given address. The panch witnesses namely Mohd Shafiq and Bhupender Singh have also not been examined as despite last opportunity they were not produced by the prosecution SC No 01/3/08 Page No. 32 33 and were dropped from the array of the witnesses by the court vide order dated: 11.01.2011 and 0l.2.2011 respectively. PW 5 admitted in answer to court queries that the consent of the accused for his search by the custom officer was not taken in writing in his own language and that no reason has been given for not obtaining his consent in his own handwriting which could have been lateron translated to the court by the interpreter. In the absence of examination of Borhan Ahmadi, particularly, when PW 5 himself is not aware of the Afghani language, as such it has not been proved on record in any manner that the accused was explained the contents of the notices U/s 50 NDPS Act and even U/s 102 Customs Act properly. The endorsement of Borhan Ahmadi made on the notice Ex. PW 5/B from point X to X that "Read over and explained in vernaculars to Mr Mohd. Bagour who consented for search by any custom officer and signed in token of acceptance." itself shows that the accused had not been explained in any manner that it was his legal right to get his person or baggage searched in the presence of a Gazetted officer or a Magistrate, as in the notice U/s 50 NDPS Act it is not SC No 01/3/08 Page No. 33 34 mentioned at all that it was the legal right of the accused. Even the statement of Borhan Ahmadi U/s 67 NDPS Act Ex. PW 5/Q does not find mention the manner in which the notice U/s 50 NDPS Act was served upon the accused nor it finds mention that the accused was explained that it was his legal right to get his search conducted in the presence of a Magistrate or a Gazetted officer. It is observed that if the notice was served upon the accused by Borhan Ahmadi at the instance of PW5, then the reply of the notice should have been taken from the accused in his own handwriting which could have cleared all the doubts about the manner in which it was served and whether the accused had understood the contents and the purpose of Sec. 50 of the Act and whether he had consented for his search to be conducted by the officer of customs or before a Magistrate or any other the Gazetted Officer.
36 The argument of the Ld. SPP for Custom that the notice U/s 50 NDPS Act was not required to be served upon accused in the present case as recovery was effected from his hand bag and nor from his person, is of no consequence, as before the recovery was effected from his SC No 01/3/08 Page No. 34 35 checked in baggage and at the time when notice was served upon accused, it was not known to PW 5 that recovery would not be effected from his person but from his checked in baggage and this view is supported by the judgment of Hon'ble Apex Court in the case of "Union of India Vs. Shah Alam & Anrs.'' reported in 2009(3) RCR (Criminal). 37 Besides, it is seen that notice Ex. PW 5/B served upon the accused was not in compliance of the provisions of Sec. 50 NDPS Act as it was partial notice as the accused had been offered to be searched in the presence of a Gazetted officer of customs besides a Magistrate. The purpose behind Sec. 50(1) NDPS Act is to avoid criticism of arbitrary and high handed action against authorised officer. It has to be borne in mind that a Gazetted officer belonging to the department which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus, associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid.
38 So far the present case is concerned, the SC No 01/3/08 Page No. 35 36 perusal of the notice U/s 50 NDPS Act that the option was given to the accused that if he so desires his baggage and personal search could be conducted before a Magistrate or a Gazetted Officer of a Customs.
39 In the case of Kuldeep Singh Vs NCB reported in 2000 (1) JCC Delhi page 74, it has been held by our own High Court that the Gazetted Officer belonging to the department which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted officer belonging to the other department. Thus in the present case the offer given to the accused to be searched by a Magistrate or by a Gazetted officer of the custom was partial offer as the accused was not given an option for her baggage and personal search to be conducted in the presence of a Gazetted Officer belonging to the other department. 40 In view of the above discussion in my opinion, neither the notice Ex. PW 5/B was proper notice nor it was served properly upon the accused and the accused was not informed of his right to be searched in the presence of a Gazetted officer or a Magistrate which is SC No 01/3/08 Page No. 36 37 mandatory.
41 At the same time, non examination of Borhan Ahmadi is fatal to the prosecution, as he was the best witness to prove as to what was explained by him on behalf of the complainant, to the accused while serving notice U/s 50 NDPS Act. Mere examination of PW 5 and his testimony to the effect that notice was served through Borhan Ahmadi upon the accused by itself is not sufficient. It is held by the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja Vs State of Gujarat that the provisions of Sec. 50 NDPS Act are mandatory and non compliance renders the recovery of illicit article suspect. Thus the non compliance of these provisions is viewed seriously and adverse inference is drawn against the prosecution, particularly, when the accused has denied that he was served any such notice and it has created doubt with regard to the truthfulness of the prosecution witness. In these circumstances where the accused has not been served with proper notice U/s 50 NDPS Act and it has created doubt in the mind of the court as to why the accused had not been given an option to be search in the presence of a SC No 01/3/08 Page No. 37 38 Gazetted Officer besides the Magistrate and why the accused was given an option to be searched in the presence of a Gazetted officer of Custom department who would have been interested in the success of the case and at the same time the evidence is lacking on record that the accused had been explained properly his rights U/s 50 NDPS Act and notice was served properly upon him. In view of such circumstances, the recovery of Heroin from the possession of the accused stands vitiated in view of the judgment of "Vijaysinh Chandubha Jadeja Vs State of Gujarat of Hon'ble Apex Court reported in 2010(4) LRC 225 (SC). 42 The prosecution is also relying upon the statement of the accused recorded U/s 67 NDPS Act which is Ex.PW 5/E on record. It is settled law that the confessional statement of the accused is a weak type of evidence and conviction should not be based on it and it needs to be corroborated by independent evidence. It is held by the Hon'ble Apex Court in the case of Union of India Vs Bal Mukand & Ors reported in 2009 (2) Crimes 171 SC that conviction should not be based merely on the basis of statement made U/s 67 of the Act without any independent SC No 01/3/08 Page No. 38 39 corroboration, particularly, in view of the fact that such statement has been retracted.
43 It is further held that confession must be voluntary and that the statement made during interrogation while the accused is in custody, cannot be said to have been made voluntarily which satisfies the conditions precedent laid down U/s 67 of the Act. In the backdrop of the aforesaid events, we find it difficult to accept that such statement had been made by the accused though they had not been put under arrest. As the authorities under the act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. 44 It is further held by the Apex Court in the case of D K Basu Vs State of West Bengal reported in (1997 ) l SCC 416 that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his rights to silence. 45 The Hon'ble Apex court in the case of Union of India Vs Balmukand & Ors reported in 2009(2) Crimes 171 SC held that:
SC No 01/3/08 Page No. 39 40
" A confession must be voluntary. A statement made during interrogation cannot be construed as confession. Circumstances attendant to making of such statements should be taken into consideration.
Conviction should not be based merely on the
basis of a statement made U/s 67 of the Act
without any independent corroboration,
particularly in view of the fact that such
statements have been retracted."
46 It is argued by the defence counsel that
accused did not make any statement U/s. 67 NDPS Act and it was fabricated by PW 5 through so called Borhan Ahmadi who has not been examined by the prosecution. He has drawn my attention towards the statement U/s 67 NDPS Act of Borhan Ahmadi Ex. PW 5/Q dated 21.3.08 wherein there is no mention at all that he had recorded the statement of the accused after conversing with him. It is further noted that PW 5 in his cross examination stated that he had given questions to Borhan Ahmadi which were put by him to the accused and then he had reduced into SC No 01/3/08 Page No. 40 41 writing his reply in English language. However, it is seen that there is no such framed questions filed on record which were put to the accused by Borhan Ahmadi and in response to the same he recorded the statement of accused U/s 67 NDPS Act Except the bald testimony of PW5, there is no evidence on record that the statement Ex. PW 5/E was made by the accused through Borhan Ahmadi, as Borhan Ahmadi has not been examined as a prosecution witness to prove as to what statement was made by the accused to him in his own language which he translated in English language. It is seen that there is no statement of the accused recorded by Borhan Ahmadi in the language of the accused so as to say that the English translated version of the accused was correct. It would have been more appropriate if the statement of the accused had been recorded in his own language and thereafter the translation of the same in English language was filed on record. There is also no evidence on record that the accused was warned before recording his alleged statement that he had a right to maintain a silence which was his constitutional right. Here it is taken note of that the statement of Borhan Ahmadi SC No 01/3/08 Page No. 41 42 himself was recorded on 21.3.08 ie after more than five months of the alleged incident and there is no explanation on behalf of the prosecution as to why his statement was recorded with inordinate delay and at the same time non mentioning in his statement about fact that he had recorded the statement of accused U/s 67 NDPS Act after he was given questions by PW 5 to be put to the accused, leads to the inference that no such statement was made by the accused. In such circumstances, it becomes immaterial whether the accused retracted from his such statement or not. At the same time the admission of the accused in the said statement about recovery of contraband from his possession becomes immaterial, particularly, in view of the fact that it is admitted by the prosecution that the accused did not know any other language except Dari and Farsi language and the said statement is in English language and it is not proved on record that it was made by the accused. Similarly, there is no evidence on record except the bald testimony of PW 5 that the contents of panchnama Ex. PW 5/C were read over to the accused in his own language by Borhan Ahmadi for the reasons that Borhan Ahmadi had SC No 01/3/08 Page No. 42 43 not appeared in the witness box.
47 Besides, there are also material discrepancies with regard to preparation of Test Memo. The complaint is silent about preparation of the Test Memos at the time of drawl of sample. It does not find mention as to when the Test Memos were prepared. PW 5 in his chief examination testified that the Test Memo was prepared in triplicate at the time of the drawal of the samples, whereas perusal of the Test Memo Ex. PW 5/L shows that it is bearing the date under the signature of PW 5 as 10.10.2007 and as such the same was prepared on 10.10.2007. As such, there is contradictory evidence led by the prosecution with regard to the date of the preparation of the Test Memos. If the chief examination of PW 5 is believed to be correct, then it is for the prosecution to explain as to where are the Test Memos prepared on 09.10.07 and in case the Test Memo Ex. PW 5/L is believed to be correct then the question arises why the Test Memos were not prepared on the date and time of drawal of the samples which amounts to non compliance of the standing instructions 1/88. At the same time it is brought to the SC No 01/3/08 Page No. 43 44 notice of the court by the defence counsel that PW 5 in his cross examination categorically testified that he had not obtained the custom seal No. 6 after 09.10.07. If the seal was not taken again after 09.10.07, then how the Test Memos were prepared on 10.10.07 without custom seal No.
6. There is no evidence on record that on 10.10.2007 PW 5 had withdrawn custom seal No. 6 from the concerned SDO(A) and after preparing the Test Memo had returned the same. At the same time there is no evidence on record that the Test Memos were bearing the custom seal No. 6 as there is no facsimile impression of the seal on the Test Memo. Perusal of the office copy of the Test Memo Ex. PW 5/L shows that it is bearing the lac seal which too was found in broken condition and is covered with transparent adhesive tape and the seal impression is not legible. Similarly, the Test Memo on which the report of the CRCL Ex. PX is prepared, the same is not bearing the facsimile of the custom seal no. 6 and though the impression on fixation of lac seal is there but the lac is missing. In such circumstances, the seal impression could not have been read by the Lab Asstt., CRCL or even the chemical examiner SC No 01/3/08 Page No. 44 45 for comparing the same with the seals affixed on the sample parcel Mark E1 to H1. It is astonishing that in the report of the CRCL it is mentioned that the each sample packet was sealed with five red lac seals and impression of each seal affixed on each of the four sample packets tallies with the facsimile of seal as given on the Test Memo, whereas infact there is no facsimile of the seal on the Test Memo. There is no explanation on behalf of the prosecution that in such circumstances as to with which seal impression, the seals which were found on sample envelopes were compared by the officials or the chemical examiner in the CRCL. It appears that observation to this effect in the Test Report was made in routine without application of mind and comparison of the seals. Thus a important link in the chain of the prosecution evidence is missing and it cannot be said conclusively that the samples which were examined in the CRCL and were opined to be containing diacetylmorphine were the true representative of the samples drawn from the recovered substance and the accused is entitled to the benefit of doubt on this account.
48 It is further observed that in the present SC No 01/3/08 Page No. 45 46 case there is no evidence on record that the sample Mark E 1 to H1 were withdrawn by PW 5 from the custody of any SDO(A) for deposit with CRCL. The only witness examined to this effect is PW 4 Sh. Kishan Chand, Supdt., who testified that on 9.10.07 at about 8 am ACO Ganpat Singh ie PW 5 had handed over to him 18 packets vide DR Nos 3927 to 3931 all dated 9.10.07 vide entry No 4067 and all these packets were handed over by this witness to the next SDO(A) vide entry No 4069 dated: 9.10.07. Both these relevant entries are proved as Ex PW 4/A and are dated 9.10.07. Besides, PW 4 no other SDO(A) or valuable godown incharge has been examined by the prosecution to prove the safe custody of the case property and the representative sample till the case property was produced in the court and sample Mark E l to H1 were sent to the CRCL. Neither any witness has been examined nor any entry in the SDO(A) register or valuable godown register has been proved on record to prove that PW 5 had withdrawn samples Mark E - 1 to H1 on 10.10.07 for deposit in the CRCL. Thus a vital link in the chain of the prosecution case is missing. Here it is also important to mention that the Test SC No 01/3/08 Page No. 46 47 Memo in the present case was not prepared at the time of drawl of the samples on the intervening night of 8/9.10.07 but as per the testimony if PW 5 Sh Ganpat Singh ACO and even the Test Memo Ex.PW 5/L itself speaks that the same was prepared on 10.10.07. It is important to notice that there is no evidence on record that once seal was returned by PW 5 to PW 4 Sh Kishan Chand SDO(A),, the custodian of the seal, it was ever issued again to PW 5 for preparing the Test Memos. This itself leads to the inference that the seal was easily accessible to PW 5 Sh Ganpat Singh ACO and it is only for this reason he could prepare the Test Memos on 10.10.07. It is also observed that since the Test memos were prepared on 10.10.07 and the custom seal was in the custody of PW 5, the samples Mark E l to H l were also in his custody and as such the tampering of the said samples cannot be ruled out. The aforesaid view is supported by the judgment of our own Hon'ble High Court in the case of Patrick Bruno Walfula Vs Department of Customs reported in 2001(2) JCC ( Delhi) 250, wherein the similar circumstances it was held that the chances of tampering of the case property were there and the prosecution case was SC No 01/3/08 Page No. 47 48 held to be doubtful. For these reasons the conviction of the appellant was set aside.
49 There is also no evidence on record that the accused was read over the panchnama Ex. PW 5/C or was explained the grounds of his arrest since Borhan Ahmadi has not been examined by the prosecution who as per the testimony of PW 5 Sh Ganpat Singh ACO had explained the same to the accused.
50 In view of the facts and circumstances of the case the mandatory safeguards provided to the accused against his false implication have not been observed in the present case. The link in the chain of the prosecution evidence is missing at every nook and corner and as such the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Hence he is acquitted of the charges U/s. 21, 23 r/w Sec. 28 of the NDPS Act, 1985. 51 In view of provisions of Section 437A Cr PC, accused Mohd Bagour is directed to furnish the personal bond in the sum of Rs. 50,000/ with one surety in the like amount. Since the accused has failed to comply with the provisions of Section U/s 437A Cr PC, direction be SC No 01/3/08 Page No. 48 49 issued to the Jail Superintendent not to release the accused till further orders.
File be consigned to the Record Room.
Announced in Open Court (Ravinder Kaur) Today. ASJ/Dwarka/ND Dated: 26.3.2011 SC No 01/3/08 Page No. 49 50 SC No 01/3/08 26.03.2011 Present: Sh P C Aggarwal, SPP for customs. Accused from J/C. Vide my separate judgment dictated and
announced in the open court today, accused Mohd Bagour is acquitted of the charges U/s 21 & 23 r/w Sec. 28 NDPS Act. The judgment shall be signed after correction.
In view of provisions of Section 437A Cr PC, accused Mohd Bagour is directed to furnish the personal bond in the sum of Rs. 50,000/ with one surety in the like amount. Since the accused has failed to comply with the provisions of Section U/s 437A Cr PC, direction be issued to the Jail Superintendent not to release the accused till further orders.
File be consigned to the Record Room.
SC No 01/3/08 Page No. 50 51
(Ravinder Kaur) ASJ/Dwarka/ND 26.3.2011 SC No 01/3/08 Page No. 51